Repealing a Derogational Provision of a Statute by a Decision of the Constitutional Court: a critical analysis of case law and an outline of possible future solutions
Abstract
The paper deals with the topic of repealing a derogational provision of a statute by a decision of the Constitutional Court as well as with consequences of such a decision. Firstly, it is argued that, within the Czech legal system, it is not a priori impossible for the Constitutional Court to repeal a derogational norm with the consequence of the previously valid law coming back into force.
The second chapter is comprised of a summary of the Constitutional Court's case-law involving the topic at hand and a critical analysis thereof, pointing out the contradictory and dysfunctional elements of the Court's jurisprudence. Finally, a coherent theoretical model is outlined, attempting to offer a solution to the problem in question.
The model is based on categorising the different kinds of derogational provisions, modalities, in which such provisions can be unconstitutional, and legally sound consequences of their repeal by a decision of the Constitutional Court.